Now that we’ve covered advertising law and privacy issues in Part 1 and Part 2 of this article, the last legal issue I will consider is anti-spam legislation.

It may not sound exciting, but it is important, especially if you’re taking your business’s marketing into your own hands. It’s also important to note that there are differences in terms of what laws apply between sending out a physical mailer to a mailbox, and sending an email.

Most of the requirements of U.K. and U.S. anti-spam legislation will be met if you follow the two guidelines I laid out in Part 1 and Part 2 of this article: Don’t mislead your customers, and make sure that you are collecting your customers’ private information legally.

But, there are a few more things you need to keep in mind, so let’s begin.

Anti-spam laws when emailing customers about your special deals:

In the U.K., the key principles you should keep in mind when sending newsletters or advertisements are that your direct marketing messages should be:

  • An accurate description of the product or service,
  • legal,
  • decent,
  • truthful,
  • honest,
  • and socially responsible (not encouraging illegal, unsafe, or anti-social behavior). 

In the U.S., general advertising laws apply, but there is no specific legislation for the content of direct or mail marketing.

Let’s look at some of the other aspects of the anti-spam legislation.

Sending newsletters or deals in the mail:

When you send a customer a physical mailer to their mailbox, there are other direct marketing laws that you need to comply with.

Postal marketing can form a useful part of your overall marketing strategy, but if the person you’re targeting asks to be taken off your mailing list, you must comply with their request.

If you fail to comply in the U.K., the person can apply to the court for an order against you under section 11 of the Data Protection Act. The Data Protection Act also requires you to follow certain data collection principles when you collect customer information; these principles are those outlined previously in the section on privacy policies.

This means you must offer them an opportunity to opt out when you collect their information, and you must also get their permission to send them offers or promotions. At any point if they request to opt out, you must honor this request.

In the U.S., the Supreme Court held in Rowan v. Post Office Dept that an addressee of postal mail can decide whether he wishes to receive further material from a particular sender, and that the sender does not have a constitutional right to send unwanted material into someone’s home.

The FTC in the U.S. and the Mailing Preference Service in the U.K. also provide services and resources for allowing consumers to opt-out of direct marketing mail. Whenever you plan to send out a newsletter or start a direct marketing campaign, make sure that you check these “do not mail” lists for any customers that may have opted-out of your material.

In the U.K., you can address mail to “the occupier” if you haven’t collected anyone’s personal information for the purpose of sending your marketing messages by post. Likewise, while it is not illegal to send unsolicited mail by post in the U.S., if your customers haven’t opted in, they may not enjoy this type of marketing being sent to them.

In 2000, a USA Weekend Poll found that “respondents ranked irritations like junk mail and telemarketing calls as the most worrisome privacy invasions of day-to-day life.” Furthermore, a 2003 survey conducted by the Pew Internet and American Life Project found that 19 percent of Americans found “junk mail delivered by the postal service” to be a very big intrusion, and 33 percent found it to be a big intrusion.

This means that over half of the recipients were unhappy with the mail being sent and considered it intrusive. While direct marketing and post marketing can be useful, keep it to a minimum so as not to annoy your customers.

Sending newsletters or deals by email:

In the U.S., the FTC has an excellent guide for ensuring that you comply with anti-spam laws when sending email marketing messages.

This anti-spam law is known as CAN-SPAM. The main requirements of the law for sending marketing emails are:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an ad.
  4. Tell recipients where you’re located.
  5. Tell recipients how to opt out of receiving future email from you.
  6. Honor opt-out requests promptly.
  7. Monitor what others are doing on your behalf.

The anti-spam law in the U.K. is called the Privacy and Electronic Communications (EC Directive) Regulations 2003, and it sets out a number of rules that must be followed when sending out marketing emails.

First, you must never hide your identity when you send your marketing emails, and if you are marketing on behalf of someone else you must not hide their identity either.

To market to someone who isn’t already a customer, you must offer them a chance to opt in explicitly. You can do this by including a tick box on your website where they can tick “I want to receive newsletters and sales information.” Or you can offer them an opportunity to do this in-store when they purchase something from you.

For individuals, U.K. anti-spam law also includes something called a soft opt-in. This basically means that in some circumstances, you can treat a customer as if they have consented to receiving emails from you, even though they haven’t actually done so.

There are a number of rules that you need to follow in order to comply with the soft opt-in allowance under the law:

  1. You need to have obtained the customer’s email address “in the course of the sale of negotiations for the sale of a product or service.” This means that the person has to be already a customer.
  2. You can only direct market to those people in respect of “similar products and services.” So, if your customers signed up to receive information on sales on pet food from you, you can’t send them advertisements for beer. However, if they are expecting pet food sale newsletters, they could reasonably expect you to send them newsletters on vet deals or cat litter.
  3. The recipient of your email marketing must have been given a method of refusing the use of their contact details at the time they were initially provided.

In all marketing emails for both the U.K. and the U.S. (as well as other countries), you must include an unsubscribe link for your customers.

This means you must allow your customers to opt out of your newsletters and marketing messages. Breaking these types of laws is no small matter either; under the Canadian Anti Spam Legislation (CASL), the first company to receive a fine was fined $1.1 million dollars for not including an unsubscribe mechanism in their emails—quite a hefty amount for not including a link!

Here’s an example of what the unsubscribe link should look like, from Vero:

Screen Shot 2015-08-26 at 2.49.28 PM

Vero email unsubscribe link

You can see that the unsubscribe link is clearly highlighted at the bottom of the email with an easy-to-click link. This is good practice for making sure that the unsubscribe link is easily visible and accessible for your customers.

Conclusion:

Now that we’ve covered advertising, privacy, and anti-spam legislation, you should be able to ensure that you comply with all laws when you are marketing or providing discounts to your customers.

At TermsFeed, we’ve set up free PDF templates that you can use to get started with both a Terms and Conditions agreement and a Privacy Policy agreement if you need them, which will have you well on your way to complying with the laws we’ve gone over in this series.

Always make sure that you don’t unintentionally mislead your customers in any way, get their consent for collecting their information and sending marketing media to them, and allow them to opt out or unsubscribe if they no longer want to receive your marketing messages and discount offers.

Do you use email marketing tactics or snail-mail—or both? Have you had to change your strategy in order to comply with anti-spam legislation or customer feedback? 

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Leah Hamilton
Leah Hamilton

Leah Hamilton is a qualified Solicitor and writer working at TermsFeed, where businesses can create legal agreements in minutes using the Generator.